Grenfell – an administrative justice case study, one year on

This week is the one-year anniversary of the fire at Grenfell Tower. The fire led to the deaths of 72 people; it has been called a tragedy and a preventable mass fatality, both terms implying different degrees of accountability of public bodies. We have learned much over the past year about the causes of the fire and the consequences for its residents and their neighbours and families. We have also seen the start of a public inquiry looking into the circumstances leading up to and surrounding the fire.

As UKAJI said in its Research Roadmap, published in February this year, the fire was an illustration of the interconnected nature of administrative justice and shows the real-world impact of complex issues of accountability, trust, complaints handling, the role of the state in ensuring people’s welfare and safety, and the potential implications of cuts to local authority budgets, de-regulation, and the pressures on public service decision-making in times of financial constraints. The decision to have a public inquiry into the fire, its causes and the wider context, and the design of that inquiry, are also matters of administrative justice.

Ad hoc design

Three years ago, UKAJI published on its blog a piece by Karl Mackie of CEDR about the design of public inquiries. Mackie noted that ‘No single court process or act of Parliament can match the approach and issues explored in a public inquiry, which provides an understanding of what has taken place, from an inquisitorial as opposed to adversarial perspective; a public catharsis; as well as wide-ranging recommendations for future action.’ As such, ‘ the process by which public inquiries meet their goals should not be neglected.’

Mackie was writing about the publication of guidance on setting up and running a public inquiry, produced by CEDR in 2015. The guidance sets out considerations for setting the terms of reference, identifies the various stakeholder groups and their concerns, and explores aspects of running an inquiry. A section is devoted to ‘Emotions’ – a reflection that this is an area with which inquiries frequently struggle. The guide gives a number of reasons why it is important for an inquiry to prepare for and make space for the expression of emotions:

‘Emotion is important in itself as an issue. It is often important for a witness’s own confidence in the Inquiry process that they feel that a significant emotion is recognised as well as helping the Inquiry to understand the importance of what the person is feeling about a situation and perhaps why. It can be a vital part, sometimes the vital part, for the witness in the enunciation of their story.

Emotion and its management can also change the way a story is told or events remembered and affect readiness for a solution. It can also obfuscate the issue and the solution to the problem. And it can influence perceptions of the fairness or objectivity of an Inquiry process. Whilst people are focussed on emotion, they are less able to understand a problem, find a solution or listen ‘objectively’ to others. It is extremely difficult to consider something to have finished/been resolved, if you still feel emotional about it to the same degree. Pent-up emotion is a serious obstacle to progress or moving on from previous incidents.’

Calls for public inquiries are becoming more frequent, yet their design has had little attention from researchers. Mackie noted that as a result of ad hoc development, inquiries often slip into a default court-like mode and become adversarial and defensive. One of the biggest criticisms of public inquiries is that they haven’t involved those who have the deepest interest in the outcomes.

Design of Grenfell inquiry

The Grenfell inquiry has been deliberately designed to learn the lessons from Hillsborough and to respond to doubts about the integrity of the process. Phil Scraton, of Queen’s University Belfast and primary author of the 2012 Hillsborough Independent Panel Report, noted last year that in his experience, ‘the Grenfell inquiry will not have the confidence of the community unless it demonstrates a profound understanding of the context, circumstances and aftermath of the tragedy, engaging directly and meaningfully with families and survivors’.

In ‘The legacy of Hillsborough: liberating truth, challenging power’, Scraton writes about the ‘view from below’, the alternative accounts (of bereaved families and survivors) that were hidden by the official discourse about Hillsborough. ‘In establishing ‘the truth’ of what happened, distinct and contrasting versions are presented from different physical, intellectual and emotional standpoints‘, and these standpoints are assigned different weight according to perceived status. Scraton notes that in seeking redress for harm, ‘victims or survivors do not necessarily demand criminal prosecutions, retribution or punishments but invariably they expect acknowledgement‘.

There was initial concern among Grenfell residents and the groups working with them that the inquiry personnel, including its chair, did not understand or represent the community. The decision to start the inquiry with two weeks of initial ‘commemoration hearings’, focusing on ‘pen portraits’ of the victims, signalled a recognition that the victims need to be at the centre of the inquiry and that Grenfell tower was both a community and a collection of individuals and families with rich lives and stories to tell. This ‘humanising effect‘, brought about with respect and dignity, helps to frame what will be a gruelling search for the truth, for hard facts and for accountability.

There have been criticisms that the inquiry will not look at potential underlying causes, such as the attitude of the state to social housing tenants. It has been suggested at the inquiry that institutional racism should form part of the inquiry’s terms of reference. In addition, Baroness Lawrence has referred to the treatment of social housing tenants as one of ‘institutional indifference’. She draws a link between the Grenfell inquiry and the inquiry into her son Stephen’s murder; in both, she says, race and class play an undeniable part, and she notes that we are seeing similar issues play out in the Windrush generation scandal. Six months ago, the Equality and Human Rights Commission announced it was undertaking an investigation into the fire – not to replicate the work of the inquiry but ‘to ensure the human rights and equality dimensions of the fire and surrounding circumstances are not overlooked’. One issue being explored by the EHRC is whether a duty on government to have due regard to the socio-economic impact of its decisions, had it been in force, would have made any difference to what happened, and whether a stronger socio-economic duty is required.

Through the lens of administrative justice

What does a focus on administrative justice bring to this? At the heart of the inquiry lies a search for a ‘truth’ about the extent to which the state (manifested particularly in the local council and the arms’ length Tenant Management Organisation) was responsible, about the adequacy of building regulations and their enforcement, about whether residents were listened to regarding risks, and the responses of the fire brigade during the fire and the government immediately following. This alone requires that we see the work of the inquiry as a matter of administrative justice. Perhaps more fundamentally is a need to examine the way that the principles underpinning administrative justice are key to our understanding of what happened and why. These principles are the values that are fundamental to the system and to peoples’ trust in the worth of the system and its ability to provide justice. Such principles include independence, fairness, transparency, accountability and respect for human dignity, equalities and human rights, matters that are central to the core requirements of the rule of law.

Researchers have a role to play here in examining principles, practice and especially design through the lens of administrative justice. The CEDR guide emphasises the importance of paying attention to the significance of process and the importance of good process design and argues that design of public inquiries should be part of law and governance courses covering a range of topics, including the methodological challenges of managing Inquiries and making effective recommendations. There might also be potential for sharing across administrative justice mechanisms, including drawing on the work of ombuds in using lesson-learning to improve initial decision-making by public bodies.

As the CEDR guide notes, ‘more careful design should be undertaken, including design advice sought from process experts, at the preliminary stage of setting up a Public Inquiry, particularly focusing on key ‘fault-line areas’ where purpose and practice/capability may diverge. A ‘purpose and design statement’ should be issued at the outset of an Inquiry to indicate that there has been analysis of purpose and process choices rather than committing simply to a process based on default thinking.’